Insurance Coverage

Failure to Timely File ‘Charge’ with EEOC Doomed Plaintiff’s ADA Suit, Seventh Circuit Rules The plaintiff in this case, a senior customer service representative of Christian Brothers Services (CBS), was in an automobile accident in March 2011 as a result of which she had to use a cane and limped. According to the plaintiff, CBS fired …Read More

A Connecticut appeals court, in a coverage dispute stemming from thousands of underlying lawsuits alleging injuries from exposure to industrial talc that purportedly contained asbestos, has ruled that the occupational disease exclusion is not limited only to claims by the policyholder’s own employees. The Occupational Disease Exclusions Variations of the occupational disease exclusion were before the …Read More

The New Jersey Supreme Court, joining the majority of courts, has ruled that an anti-assignment clause in an “occurrence” insurance policy did not bar the assignment of a post-loss claim even if the claim had not been reduced to a money judgment. The Case Givaudan Fragrances Corporation faced liability as a result of environmental contamination …Read More

The Supreme Court of Washington has ruled that the state’s Insurance Fair Conduct Act (“IFCA”) did not permit insureds to sue their own insurers for violation of regulations adopted under the IFCA in the absence of an unreasonable denial of coverage or benefits. The Case A driver injured in an accident sued his insurer under …Read More

The Texas Supreme Court has ruled that an insured-versus-insured exclusion in a directors and officers (“D&O”) liability insurance policy applied to preclude coverage of a lawsuit brought against a former director and treasurer of a condominium association by an assignee of the association. The Case After Robert Primo resigned as a director and treasurer of …Read More

The Oklahoma Supreme Court, in response to a question certified by the U.S. District Court for the Western District of Oklahoma, has ruled that the public policy of Oklahoma did not prohibit enforcement of an indoor air exclusion in a commercial lines insurance policy. The Case Several guests inside a hotel in Siloam Springs, Arkansas, …Read More

Maryland’s highest court, the Maryland Court of Appeals, has enforced a prior acts exclusion in a primary insurance policy and ruled that an excess insurer was not bound by the primary insurer’s interpretation of that language. The Case A class action lawsuit filed against Cristal USA, Inc., on April 12, 2010, alleged that Cristal had …Read More

In a recent decision, the United States District Court for the Southern District of New York considered whether principles of judicial estoppel may prevent an assignee of a legal malpractice claim from prevailing on a claim against his former adversary’s attorneys. Molina v. Faust Goetz Schenker & Blee, LLP, 2017 U.S. Dist. LEXIS 13568 (S.D.N.Y. …Read More

Tenth Circuit Upholds Pension Trust’s Decision to Honor IRS Levies When the plaintiffs in this case retired, they began receiving monthly benefits from the Boilermaker-Blacksmith National Pension Trust, a pension plan in which they participated. However, after the trust received notices of levy for both of them from the Internal Revenue Service (IRS), the trust …Read More

Claims-Made Policy Afforded Insured 60 Days After End Of Term To Notify Insurer An employee of New York Institute of Technology (“NYIT”) sued NYIT for defamation on February 26, 2009, and NYIT received notice of the action on August 6, 2009. NYIT’s claims-made-and-reported insurance policy ended on September 1, 2009. NYIT notified its insurer of …Read More

Seventh Circuit, Joining Other Circuits, Rejects ERISA Plan’s “Coordination of Benefits” Lawsuit Against Health Insurers The plaintiff in this lawsuit, filed in a federal district court in Illinois, was the trustee of the Central States, Southeast and Southwest Areas Health and Welfare Fund, a self-funded plan under the Employee Retirement Income Security Act of 1974 …Read More

The South Carolina Supreme Court has found that letters issued by a commercial general liability insurer to its insureds were inadequate to reserve its rights as they amounted to “generic denials of coverage coupled with furnishing the insured with a verbatim recitation of all or most of the policy provisions (through a cut-and-paste method).” The …Read More

A federal district court in Indiana has ruled that a claims-in-process exclusion in a commercial general liability insurance policy precluded coverage for the insureds’ claim where pollution at the insureds’ property had begun before the insureds even had purchased the property. The Case Property in Lake Station, Indiana, was used as a dry cleaning facility …Read More

The U.S. Court of Appeals for the Eleventh Circuit has ruled that a Florida claims handling statute did not preclude an insurer from declining to pay pre-tender defense fees and costs incurred by its insured prior to tendering its claim to the insurer. The Case After EmbroidMe.com, Inc., was sued in federal district court for …Read More

The U.S. Court of Appeals for the Tenth Circuit has ruled that the two insurance policies covering a leased building damaged in a fire – and not the lease itself – determined the insurers’ relative responsibilities for the damage. The Case Philadelphia Indemnity Insurance Company and Lexington Insurance Company insured the same school building that was …Read More

The U.S. Court of Appeals for the Ninth Circuit has ruled that an insured’s failure to tender an environmental lawsuit to three insurance companies was fatal to its coverage claim, even though the insured previously had tendered a potential administrative proceeding to the carriers. The Case M.B.L., Inc., a defunct dry cleaning products company, sued …Read More

The U.S. Court of Appeals for the Ninth Circuit has ruled that an insurer had no obligation to cover its insured’s agreement to settle a lawsuit where the insurer had not given its prior written consent to the settlement as required by the policy. The Case Assured Guaranty Municipal Corporation sued OneWest Bank, FSB, for …Read More

The U.S. Court of Appeals for the Eighth Circuit has ruled that an insurer did not have a duty to defend or indemnify an additional insured in connection with a lawsuit brought by a subcontractor’s employee who alleged that he had been injured in an explosion caused by condensate, concluding that the employee’s allegations fell …Read More

Alan Rutkin article entitled, “Insight – Too Good to Be True?,” has been published in the February 2017 issue of Best’s Review magazine. Click here to read the article. Best’s Review: February 2017. Copyrighted A.M. Best Company, Inc. 2017. All Rights Reserved, Reprinted with Permission. …Read More

“Contractual Privity” Not Required For Project Consultant To Be “Additional Insured,” New York Trial Court Rules Rockefeller Group Development Corp-oration, as an agent for 1221 Avenue Holdings LLC, contracted with A. Best Contracting Co., Inc. (“Abestco”) to have Abestco perform construction work at 1221 Avenue of the Americas in Manhattan. The contract allegedly required that …Read More

The Supreme Judicial Court of Maine, affirming a trial court’s decision, has ruled that assault and battery exclusions in an insurance policy issued to a bar precluded coverage for a negligence lawsuit against the bar stemming from an alleged fight. The Case Barnie’s Bar & Grill, Inc., was sued by a plaintiff who alleged that …Read More

A federal district court in Montana has ruled that a personal profits exclusion in a directors, officers, and managers liability and corporate indemnification (“D&O”) policy had been triggered by a special master’s finding that the insured officer had committed conversion – but only with respect to that claim. The Case After an officer of Global …Read More

The Oregon Supreme Court, affirming a lower court’s decision, has ruled that an insurer had a duty to defend an additional insured against a complaint that contained allegations that, reasonably interpreted, could result in the insured being held liable for damages covered by the policy. The Case West Hills Development Company was the general contractor …Read More

An appellate court in California, affirming a trial court’s decision, has ruled that an insurer had no duty to indemnify its insured, a licensed general contractor, in a construction defect case where the contractor’s action that led to the defect had been deliberate. The Case D.B.O. Development No. 28 entered into a construction contract with …Read More

An appellate court in California has affirmed a trial court’s decision that a general contractor was not an additional insured on a subcontractor’s excess insurance policy. The Case Advent, Inc., was hired as the general contractor for the Aspen Family Village project in Milpitas, California. Advent subcontracted with Pacific Structures, Inc. In turn, Pacific subcontracted …Read More

An appellate court in Ohio, applying the “triggering event” theory, has ruled that each individual claimant’s exposure to asbestos was an “occurrence” for purposes of insurance policies issued to a valve manufacturing company. The Case Some of the valves manufactured by the William Powell Company before 1987 contained asbestos. In 2001, Powell began receiving personal …Read More

The U.S. Court of Appeals for the Sixth Circuit, in a case involving asbestos liabilities, has affirmed a Michigan district court’s decision that pro rata allocation was the appropriate method to use to allocate damages and costs under an insured’s policies and has affirmed the district court’s decision requiring the insured to pay approximately $2.4 …Read More

Florida Court Upholds Denial of Long-Term Disability Benefits to Employee Who Worked Fewer Hours The plaintiff in this case was a financial sales professional with AXA Equitable Insurance Company who said that he experienced neck and back pains stemming from motor vehicle and snowboarding injuries that he had suffered in 2003. The plaintiff regularly worked 70 to …Read More

Sagging Roof Was Not A Collapse, Court Confirms The owner of a building in the Bronx sought coverage under its property policy for a damaged roof, claiming it “collapsed,” a covered cause of loss under the policy. The court granted the insurer’s motion for summary judgment, finding that “no part of the premises fell to …Read More

Implied-in-Fact CBA Excluded Time Spent Donning and Doffing Work Clothing from Compensable Time, Eighth Circuit Decides Since at least 1967, hourly employees working at the battery manufacturing facility in Joplin, Missouri, operated by EaglePicher Technologies, LLC, were represented by a union, presently known as the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial …Read More

The U.S. Court of Appeals for the Fifth Circuit, reversing a Louisiana district court’s decision, has ruled that a professional liability insurance policy did not cover a lawsuit against a lawyer where it did not allege that the lawyer had engaged in any professional acts or omissions that gave rise to the plaintiffs’ claims. The …Read More

The U.S. Court of Appeals for the Sixth Circuit, affirming a decision by a federal district court in Michigan, has ruled that a “Wrongful Act” exclusion in an errors-and-omissions (“E&O”) policy precluded coverage for losses stemming from an employee’s embezzlement scheme. The Case A representative for a licensed securities broker-dealer embezzled client funds by depositing …Read More

The U.S. Court of Appeals for the Eighth Circuit has upheld a district court’s decision that a personal auto insurance policy did not provide coverage for an accident involving a box truck, which was excluded from the definition of covered “auto.” The Case A woman struck by a rented box truck obtained a $225,000 consent …Read More

The U.S. Court of Appeals for the Eighth Circuit has affirmed a district court’s decision concluding that a homeowners’ insurance policy was void under its terms because the insured homeowners had made material misrepresentations during the claims process. The Case On October 10, 2012, either one or two fires occurred at the home owned by …Read More

The West Virginia Supreme Court, adopting the majority view, has ruled that intentional acts exclusions in homeowners’ insurance policies precluded coverage for negligence claims against two insureds whose daughters had committed murder. The Case The parents of a teenage girl murdered by two of her friends sued the killers and their mothers. The plaintiffs asserted …Read More

The U.S. Court of Appeals for the Sixth Circuit, reversing a decision by a federal district court in Michigan, has ruled that a company that settled product liability suits without the written consent of its excess liability insurance company was not entitled to recover the amount of the settlements from its excess carrier. The Case …Read More

Private Dispute Over Policy Coverage Did Not Support Insured’s GBL § 349 Claim Against Insurer, Fourth Department Rules A building owner sued its insurance company for deceptive acts and practices under New York General Business Law § 349, alleging that the insurer had retained a non-engineer to conduct an investigation into its claim for damage to its building and …Read More

Company’s COBRA Breach Justified Award of Premiums to Former Employee, Eighth Circuit Rules When Health Resources of Arkansas, Inc. (HRA) reduced its work force in response to financial difficulties in 2012, the plaintiff in this case was 57 years old and had been working for HRA since 1987. She had worked her way up from …Read More

A federal district court in Alabama has ruled that a grocery store was not entitled to coverage of a lawsuit brought by credit unions alleging that they had been damaged when the store’s computer network was hacked. The Case Three credit unions sued Camp’s Grocery, Inc., which operated a grocery store in Hokes Bluff, Alabama, …Read More

The U.S. Court of Appeals for the Fifth Circuit has affirmed a decision by the U.S. District Court for the Western District of Texas that the owner of a refinery was not covered under its parent company’s insurance policy where the refinery owner was not listed as an insured and it could not demonstrate that …Read More

The U.S. Court of Appeals for the Third Circuit has affirmed a decision by the U.S. District Court for the Middle District of Pennsylvania granting summary judgment in favor of an insurance carrier in a bad faith case. The Case A man working for Stephen Bodnar died when a trench they were digging collapsed. Danielle …Read More

The U.S. Court of Appeals for the Ninth Circuit has affirmed a decision by the U.S. District Court for the Northern District of California that an insurer was not obligated to defend its insureds in an action brought by a vineyard owner against them. The Case The owner of a vineyard sued Jack Neal & …Read More

The U.S. Court of Appeals for the Fifth Circuit has ruled that an insurance company was not required to cover its insured’s loss under the computer fraud provision of a crime protection insurance policy where the only computer use was an email to the insured asking it to change a vendor’s bank account information. The …Read More

Insured Could Not Recover Its Attorneys Fees From Insurer, Fourth Department Decides A construction company sued its insurer, alleging that it had breached its coverage obligations under a commercial auto insurance policy. The trial court awarded the construction company the attorneys fees it had incurred in prosecuting the action, and the insurer appealed. The Appellate …Read More

The U.S. Court of Appeals for the Ninth Circuit, applying Washington law, has ruled that a “watercraft” exclusion precluded coverage for a claim that fish oil had been contaminated with petroleum residue when it had been pumped off one of the insured’s vessels. The Case Trident Seafoods Corporation sought partial indemnification from ACE American Insurance …Read More

An appellate court in Florida, affirming a trial court’s decision, has ruled that an insurance policy’s “entrustment” exclusion applied to property leased by an insured landlord to its tenant. The Case Grover Commercial Enterprises leased property it owned in Coconut Grove, Florida, to Carma, LLC. Carma operate a restaurant on the property known as “The …Read More

A federal district court in Arizona has granted summary judgment in favor of insurers that had issued excess and umbrella policies to a city because the city’s settlement of an asbestos personal injury action did not exceed the amount of its self-insured retention (“SIR”). The Case From 1981 to 1985, various insurance companies issued excess …Read More

An appellate court in Pennsylvania, affirming a trial court’s decision, has ruled that an insurance policy’s assault and battery exclusion barred coverage of negligence claims against a bar stemming from an alleged shooting. The Case Jalil Walters and his wife, Rasheeda Carter, filed a negligence action against OK Café, Inc., which operated the Jazzland Bar …Read More

The Louisiana Supreme Court has ruled, in a “long latency disease” case, that defense costs under occurrence-based insurance policies should be prorated among insurers and the insured where there were periods of non-coverage. The Case Plaintiffs alleged that they had suffered hearing loss from exposure to unreasonably loud noise in the course of their work …Read More